Bush's Negative Mandate Narrows his Nominees

by Jack M. Balkin

The disclosure that Linda Chavez harbored an illegal immigrant
destroyed her chances to serve in the Bush administration. Chavez can
well complain that she was treated unfairly. But behind her personal
tragedy lies a more important lesson about the American
constitutional system. Chavez is not only the victim of her political
enemies. She is a victim of a president-elect who does not yet fully
understand the questionable circumstances that brought him into power.

After ordinary elections, the Senate allows an incoming
president his choice of Cabinet members. But this is not an ordinary
election. Some Americans continue to believe that George W. Bush is
not the legitimate president of the United States. They believe that
he and the Republican Party stole the 2000 election, aided and
abetted by a lawless act from five conservative activist justices on
the U.S. Supreme Court. And even if Bush was legally elected
president, he lost the popular vote. Not only does he lack a mandate;
he has a negative mandate. More voters opposed his policies than
favored them. In no way could the election be seen as approval for
the far right wing of the Republican Party.

Recognizing this, President-elect Bush promised bipartisanship
and compromise. Then he deliberately nominated three Cabinet
appointees--Chavez, Gale A. Norton as Interior secretary and John
Ashcroft as attorney general--who were far out of the mainstream. And
he appointed them in departments dealing with some of the most
controversial issues in contemporary politics. He acted as if nothing
unusual had happened in Florida and he had won the popular vote by
eight percentage points.

The Senate's power to advise and consent is one of the basic
checks and balances of our constitutional system. It prevents the
president from nominating unqualified candidates. But it also acts as
a brake on ideological frolics. It keeps appointments closer to the
mainstream and is a barometer of the president's political mandate.
The more powerful a president, the more easily he can appoint
nominees far from the center; the weaker the president, the more he
must compromise with the Senate. Thus, in 1986, when President Reagan
was at the height of his popularity, he could nominate a jurist of
the hard right like Antonin Scalia to the U.S. Supreme Court, but
after the Iran-Contra scandals weakened him, he had to settle for the
more moderate Justice Anthony Kennedy instead of Robert Bork.

So it is today. Bush enters the presidency under a cloud of
illegitimacy, with no mandate other than an obligation to
bipartisanship and compromise. Under these circumstances, the Senate
has the constitutional authority--and the duty--to hold him to a
moderate course. That is true of Cabinet appointments; it is even
more true of judicial nominations that offer life tenure.

The tragedy of the Chavez controversy is that her defeat was
accomplished under the cover of accusations of illegal conduct,
through what she called the politics of personal destruction. But the
real objection to Chavez was that Bush should never have nominated so
ideological a candidate in the first place. It was no wonder that the
knives were out for Chavez. Attacking a nominee's honesty and
morality may give politicians cover, but it is not the most honest
way to conduct politics. Candor is necessary in times of
constitutional crisis, and make no mistake, the accusations of
illegality hovering over the election constitute a genuine crisis for
the nation.

Given that crisis, the Senate should take up its
constitutional responsibilities seriously. It should hold Bush to his
promise to represent all the people. It should reject Ashcroft and
Norton if they are too far out of the mainstream and hostile to most
Americans' commitments to civil rights and the environment. Moreover,
it should not be afraid to explain its reasons for doing so.

Refusing Ashcroft and Norton for the right reasons would send
the correct signal to the president about how he must govern for the
next four years. And it would be much better than destroying these
public servants through personal attack and innuendo.